By Kaitlin Price

Today, Friday, March 6, 2015, the Fourth Circuit in Tiscareno-Garcia v. Holder denied in part and dismissed in part Petitioner, Rafael Tiscareno-Garcia petition for review of an order for removal of the Board of Immigration of Appeals.


Rafael Tiscareno-Garcia illegally entered the United States on four different occasions. Between March 8, 1999 and November 3, 2000, Tiscareno-Garcia illegally entered the United States from Mexico and was apprehended by U.S. border patrol three times. On all three occasions Tiscareno-Garcia was permitted to return voluntarily to Mexico. However, on his fourth illegal crossing of the border Tiscareno-Garcia was able to avoid being caught by border control and traveled to Raleigh, North Carolina. Tiscareno-Garcia resided in Raleigh for ten years until on November 15, 2010, he was arrested by agents from the Immigration and Customs Enforcement as a part of a work-place raid. Tiscareno-Garcia was charged with illegal entry in violation of 8 U.S.C Section 1325(a), a misdemeanor offense.

Procedural Posture 

Tiscareno-Garcia served his six month sentence and then applied for a cancellation of removal action claiming that his removal would cause “exception and extremely unusual hardship” to his three children, including a ten-year-old autistic son. The Immigration Judge found that Tiscareno-Garcia was ineligible for cancellation of removal due to his 6 month imprisonment  because Section 1101(f)(7) precludes an alien from establishing good moral character, a requirement to qualify for a cancellation of removal action, if he or she has been imprisoned for 180 days or longer. The BIA, …, affirmed the Immigration Judge’s decision because Section 1101(f)(7) does not depend on the type of offense, but the sentencing, therefore Tiscareno-Garcia was ineligible for a cancellation of removal action.

The Clear and Unambiguous Interpretation of Section 1101(f)(7) Does Not Create An Absurd Result 

The Fourth Circuit found that the clear and unambiguous intent of Section 1101(f)(7) is to prevent any aliens who have been imprisoned for 180 days or more to be precluded from a finding of “good moral character,” a necessary finding to qualify for the cancellation of removal action. Petitioner does not disagree with this plain and unambiguous meaning.

Next, the Fourth Circuit addressed Petitioner’s claim that the plain and unambiguous reading of Section 1101(f)(7) leads to an absurd result. Petitioner claimed that preventing an alien from applying for cancellation of removal relief, Section 1229(b), solely because of an imprisonment on  a charge of entering the U.S. illegally, Section 1325(a)  is an absurd result because Section 1229(b) is meant to provide aliens with a relief for those who violate Section 1325(a). The Fourth Circuit rejected Petitioner’s argument that this situation is one of the “exceptionally rare” instances where “a literal reading of a statute produces an outcome that is demonstrably at odds with clearly expressed congressional intent.” Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th Cir. 2000).  The Fourth Circuit explains that to reach the absurdity threshold it must be a result that “shocks the general moral or common sense. Here, Congress provided a number of actions that bar an alien from seeking cancellation of removal action because he or she cannot establish good moral character. The Fourth Circuit rejected Petitioner’s claim that this provision will prevent all aliens convicted of illegal entry from qualifying for cancellation of removal.

The Fourth Circuit posited three common situations in which aliens could not be barred from seeking cancellation of removal due to being arrested for entering the U.S. illegally : (1) if they came to the U.S. legally, but violated a visa, (2) those who are not convicted under  Section 1325(a), and (3) those who do not receive the maximum 180 day sentence. Further, the Fourth Circuit found plausible reasons for Congress to decided to exclude discretionary cancellation of removal relief to the aliens who serve the maximum sentence for violating Section 1325(a), therefore the plain language of the statute is not absurd.

Failure to Exhaust Administrative Remedies 

To establish eligibility for cancellation of removal relief an applicant must have been “physically present in the United States for a continuous period of not less than 10 years,” and “has been a person of good moral character during such 10 year period.” Petitioner argued that the time period during which he must establish he had been a person of good moral character ended when he was provided his notice to appear. First, the Fourth Circuit noted that this argument directly contradicts the BIA’s position on the issue, which states the time period does not end until a final administrative decision has been made. Further, the Fourth Circuit did not have jurisdiction to address this issue because it was not raised before the BIA and therefore Petitioner failed to exhaust all administrative remedies.

The Fourth Circuit rejected Petitioner’s argument regarding his reasons for failing to make this argument before the BIA. Although Petitioner claims it was because his lawyer was unable to receive a copy of the Notice to Appear, which was required to show Petitioner was served before he went to jail, however, Petitioner still failed to raise the argument even after receiving the Notice of Appear.

Due Process Challenge Without Merit 

Petitioner claimed that the combined effect of the statutes at issue violated his due process rights. The Fourth Circuit rejected this claim because it was without merit. To establish a due process violation in a deportation hearing the Petitioner must show both a defect in the proceeding rendered the proceeding fundamentally unfair and the defect prejudiced the outcome of the case. The Fourth Circuit found this was simply Petitioner’s second attempt to challenge the statute’s bar on eligibility for those who are imprisoned for more than 180 days and thus there are no merits.

The Fourth Circuit denied in part and dismissed in part all of Petitioner’s claims.